Jagroop Singh S/o Hakam Singh vs State Of Rajasthan

The instant appeal is directed against the

judgment dated 11/08/1994 passed by Additional Sessions Judge

No.1, Hanumangarh in Sessions Case No 8/91 by which the

accused-appellants are convicted under Section 302 / 34 of IPC for

life imprisonment with a fine of Rs.500/- in default thereto to

undergo for one month''s rigorous imprisonment and both have

also been awarded two year''s rigorous imprisonment for the

offence under Section 201 of IPC.

The contents of Ex.P.20 F.I.R. No.328 dated

17.10.1990 reads as under :-

"VERNACULAR MATTER OMITTED"

Heard both the sides, learned counsel for the

appellants has contended that all the witnesses of the prosecution

except PW.1 Smt.Gulab Kaur have become hostile, so far as

testimony of Smt.Gulab Kaur is concerned, it is also not reliable

because a real mother cannot keep alleged assassination of her

own son concealed for days together, initially morgue against

unknown was registered and subsequently a false story was

invented through PW.1 Gulab Kaur, it is quite unnatural that a

mother, whose own son is allegedly taken away in a suspicious

way with some ulterior motive to be harmed or eliminated, would

not raise alarm, rescue or resist the killing of her own son, from

the clutches of deceased''s wife or his son, motive of the offence has also not been established, prosecution has failed to establish

as to what was the "reason and motive" behind the alleged

murder, which is a paramount consideration for cases relating to

murder. A mother, who observed that after untoward body of his

son is thrown in water pond, would certainly cry and after

witnessing the occurrence, would rush to her own home and

convey the crime to rest of the family members, disclosing the

names of wrong doers, but nothing of this kind has taken place,

which makes the story of the prosecution highly doubtful and a

mother will never conceal murder of his own son for days

together, moreover, all the witnesses of the prosecution have not

supported the version of the prosecution, attitude of Smt. Gulab

Kaur has also remained highly unnatural and doubtful, so her

testimony cannot be a reason to convict the accused persons, the

findings of learned trial Court are not sustainable, so appeal be

allowed and the findings of learned trial Court be quashed.

On the contrary, learned public prosecutor has

contended that there is no abnormality or unnatural conduct on

the part of Smt. Gulab Kaur, she was under shock, when she

witnessed killing of her own son by her daughter-in-law and grand

son, son of the deceased, she became nervous, so she went to the

house of her daughter under psychological trauma and fear hence

she could not convey the incident of killing to anybody, but when

she gathered information about the same that her son is no more

from his son-in-law, then she disclosed everything truthfully and

her police statements recorded under Section 161, as well as,

statements recorded under Section 164 and statements made

during the trial are unaltered and are corroborative, so there is no

error in the findings of the learned trial Court. Appeal deserves to

be dismissed, so it be dismissed.

The record of the trial court reveals that initially

on detection of dead body from water pond, a morgue under

Section 174 of CrPC was registered vide Ex.P.18 on 17/10/1990

against unknown, subsequently complainant Darshan Singh son of

Prem Singh, brother of deceased, disclosing that a scuffle had

taken place between the deceased and Gurudev Singh, to whom

deceased Hakim Singh had sold his agriculture land, for lawful

consideration and had handed over possession of the field to him,

the F.I.R also discloses that during alleged scuffle, deceased

Hakim Singh, his wife Basant Kaur and his son Jagroop Singh went

to the field and Hakim Singh fired 12 bore gun shot targeting

Gurudev Singh vendee of the land and this aspect of the F.I.R

has been recited as an indication of animosity and

suspected involvement of non-assailant party, buyer of

agriculture field, who is also reported to be a close relative

of the deceased.

The dead body of deceased Hakim Singh was

detected from the water-pond on 17/10/1990 and the

matter got twisted after disclosure of story by Smt. Gulab

Kaur PW.1 a 75 year old lady, none-else but mother of

deceased Hakim Singh and grand-mother of accused

Jagroop Singh and mother-in-law of co-accused Basant

Kaur.

The twisting disclosure has been made by Smt.

Gulab Kaur on 21/10/1990 vide Ex.P.1 police statements of Smt.

Gulab Kaur in context of which Ex.D.2 statements of Smt. Gulab

Kaur were recorded under Section 164 of CrPC as well.

All the witnesses of the prosecution, other than

Smt. Gulab Kaur have become hostile, even witnesses pertaining

to Panchayatnama, spot map, author relating to F.I.R and

testimony relating to recovery have totally negated the story of

the prosecution and have denied documentary exhibits relating to

the investigation.

Statements of Smt. Gulab Kaur are also

highly doubtful because she despite being mother of

deceased Hakim Singh, who was allegedly taken to some

isolated "Nohra" was beaten and carried to the water-pond

and further was thrown away there and she remained

silent during observing the entire event, she allegedly

smelt something ulterior, so she latently followed her son,

grand-son and daughter-in-law, where she heard her son

Hakim Singh imploring "Do not beat" because agriculture

land was alienated on their consent, then mysterious

silence stopped voice of her son Hakim Singh, who was

further carried away on the cot by the accused persons

with help to two unknown persons to a nearby pond,

passage of which went through the habitated locality, even

from the front of the house of the deceased without

noticing it by anybody and Smt. Gulab Kaur followed them

upto the spot of water-pond, seen them throwing deceased

in the water pond without any help of cry or even to stop

the alleged unlawful, she kept mum and in the same

midnight time she went away to some distant area of

Hirnawali to the house of her daughter, where her son-in-

law and their family members were present, but for days

together, she did not reveal or share unnatural with any of

the family member/s even with her own daughter and such

conduct of Smt. Gulab Kaur, utters mystery and unreliable

conduct of a mother, under the alleged shocking

circumstance and event relating thereto, which makes the

story of the prosecution highly doubtful.

PW.2 Amar Singh brother of the deceased has

become hostile, likewise PW.3 Darshan Singh, author of the

F.I.R and brother of deceased has also become hostile and both

have denied their police statements as well.

PW.4 Dr. R.K. Gupta, who conducted

postmortem on the body of the deceased on 18/10/1990 vide

Ex.P.4, has said that Ex.P.4 is in his hand writing, which contains

his signatures and he has said that body of the deceased was

brought out from the water-pond on 17/10/1990.

Per Ex.P.18 report under Section 174 Cr.P.C,

information pertaining to detection of body was received on

17/10/1990 at 3.30 p.m., but for rest of the day, what went wrong

for not conducting autopsy is obscure, Dr. Gupta has said that

"the cause of death was strangulation and choking of the

neck with some object, he has specifically said that no

injury mark was there on the body of the deceased and the

deceased had eaten meals before the death".

On the contrary, Smt. Gulab Kaur, mother of

the deceased has said that she heard that her son was

"saying not to beat him" and he was taken there on pretext

of serving meals, instead of that he was beaten and

allegedly strangulated there, but it has come clearly from the

evidence that no arrangements of meals were there in the

"Nohra", then detection of semi-digested food and opinion of

medical expert that deceased had eaten meals prior to few hours

before his death and non-presence of injury marks on the body,

makes the things more doubtful and attributes suggestion that

Smt. Gulab Kaur has not narrated truth.

There are several "unnatural" and "unreliable"

statements of Smt. Gulab Kaur, since she has said that when

Hakim Singh asked for serving meals, then his wife Smt. Basant

Kaur said that come-along to "Nohra", meals would be served

there, so Hakim Singh went with Basant Kaur and Jagroop Singh

to "Nohra", she also followed them, it was midnight, she over-

heard from outside, dialogues of Hakim Singh, Jagroop Singh and

Basant Kaur, where Hakim Singh was saying that he had sold the

land with their consent, "why he was being given beatings",

then voice of Hakim Singh silenced, then Jagroop Singh, Basant

Kaur and rest of the two unknown persons put/laid Hak?m Singh

on the cot and took him away, she again pursued them upto

water-pond, situated near the field of Dasrath Singh and

Gurudwara and thrown away the body into the pond.

The dead body has been recovered tied, but

nothing of this kind of disclosure is there that Hakim Singh was

died before throwing away into the water

PW.1 Smt. Gulab Kaur has narrated several

significants, which goes to suggest that testimony of this lady is

not trustworthy, "she has said that when, Hakim Singh was put on

the cot and was being carried away, she followed them, they

thrown away Hakim Singh in the water-pond, she heard a

"splash" but she went away and while passing through the road,

she came to Pakka Saharan from where she took a bus and went

to "Hirnavali" to the house of her daughter.

Her son-in-law Harpal Singh brought the news

that Hakim Singh was no more and his body was found in a pond

then she said that she is in knowledge of this, but did not say

anything to anybody, advertently.

She has further said that she was not well, so did

not share it with anybody, in her cross-examination, she has said

that in those days, she was living with Hakim Singh and no quarrel

occurred at home and has said that "she can see, but her

vision is poor" and has said that meals, tea, water etc. are

prepared at home and no meals or tea is prepared in "Nohra" and

has said that in way to Darshan Singh''s Diggi from "Nohra" of

Hakim Singh, one has to pass through the road of Hakim Singh''s

house.

She has further said that she did not go to her

house from the field and directly went to bus stand, no passenger

was there at the bus stand and she was alone there, bus was

coming from Hanumangarh and was going to Harnavali, she did

not say to any co-passenger regarding the incident, she had

purchased ticket and even conductor was not shared with the

killing incident nor she asked to take her to police station, she has

further said that on arrival at Hanumangarh bus stand, her

nervousness and fear got vanished, she has further said that she

is in notice that there was a thana at Hanumangarh, but she did

not go to it and at 10-11, she reached at the house of her

daughter at Hiranawali and fear extincted there and has further

said that she did not share and inform at Hiranawali to her

daughter, Jawai (son-in-law) and Sarpanch etc. that her

son was murdered and has further narrated unbelievable

by saying that if her Jawai had not shared the unpleasant

as narrated by Doctor that Hakim Singh was no more, she

would have not told and disclosed anything to him, as well.

She has further said that eight days later to the

detection of dead body of her son, she went to police from

Hiranavali Village alone to give statements, she has further

contradicted several narrations of Ex.D.1 police statements and

has said that two police constables went with her to the Court,

when her statements were recorded and has said that in Ex.D.2,

she did not inform that due to timidness, she restrained from

informing Hakim Singh''s death, she has also said that she did not

go to the house of her other sons to convey the incident because

night was dark and she got scared of dogs and has also said that

while she went to bus stand after observing the incident, she did

not get scared of dogs and dark, so appraisal of the testimony

of this witness shows that it is full of unreliable and

contradictory altogether.

A real mother would naturally check her

son''s son and her son''s wife from doing anything homicidal

upon her own son or would certainly cry out, rescue and

call others for interfering and rescuing, rather Smt. Gulab

Kaur observed everything in a silent way and did not react

anything in a natural and normal way, she withheld the

information of the incident for days together, on the one

hand, she says that she was scared, on the other side, she

says that timidness was not there, despite she did not say

anything to anybody, she has even said that she would not

have divulged the incident before anybody, had her son-in-

law (Jawai) would have not informed regarding the death

of Hakim Singh.

She has said that her son was taken, on the

pretext of serving meal inside "Nohra", but no meals or tea were

ever prepared or were normally prepared there, "it has also

come in the evidence that deceased Hakim Singh was a

fearless, bold person, who even after transferring the land,

allegedly for lawful consideration, went to grab the land from

Gurudev Singh, with a 12 bore gun and threatened him and even

fired there, had he been a person of timid nature, then unreliable

as narrated could have appeared otherwise, an individual who

is bold and goes with a fire arm weapon and abortively

attempts, shotting fire, even something untoward, cannot be over-

powered by his wife or a son and such a person will also not

implore for mercy by saying that "Do not beat" but such a person

would certainly try to counter the assault and even endeavour to

exceed the defence limits.

There are says that deceased was beaten there,

no meals were served, he was taken there on the pretext of

rendering meals, but autopsy report reveals otherwise, since Dr.

R.K. Gupta has said that there was no injury marks on the body of

the deceased, and semi-digested food was found in the stomach

since he had taken meals sometime prior to his death, it also

capsizes the story of the prosecution and makes the revelation as

made by Smt. Gulab Kaur quite unnatural and unbelievable.

Smt. Gulab Kaur has also said that her son Hakim

Singh went away with Basant Kaur and Jagroop Singh to "Nohra",

but in her Ex.D.2 statements as made under Section 164 of

Cr.P.C., she has said that Basant Kaur and Jagroop Singh said

Hakim Singh that they will serve meal in "Nohra", then Hakam

Singh went to "Nohra", Basant Kaur and Jagroop Singh went

behind him, in her statement Ex.D.2 she has also said that Hakim

Singh had gone to grab the land from Gurudev Singh, he fired

there, Gurudev Singh took-away gun from him and deposited the

same with police station after lodging complaint and in whole of

the evidence, tractor loan, payment of two lakhs and receipt

thereof from vendee has occurred, but Ex.D.2 also says that apart

from it, some money was also borrowed, which too is not there in

the other evidence.

Upon considering the afore-discussed evidence, it

is suffice to mention that the entire evidence of the prosecution is

untrustworthy and highly unreliable. Sole witness Smt. Gulab Kaur

is a lady of 75 years and a lady of this age would certainly shun

scaring and will boldly counter the alleged attack upon her own

son, and would certainly inform the incident to all, instead of

turning mute for days together, F.I.R is highly belated, as such

strong doubt arises on the culpability of accused appellants.

In catena of verdicts, it has been ordained by

Hon''ble Supreme Court that if there arises a doubt then the

benefit ought to be extended to the accused person.

Hon''ble Apex Court while deciding Sharad

Birdhichand Sarda vs. State of Maharashtra, AIR 1984

Supreme Court 1622 has laid down the conditions of

circumstantial evidence on which conviction could be made in

view of Section 3 of Evidence Act which postulates as

under :- "The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established:

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned ''must or should'' and not ''may be'' established.

(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(iii) the circumstances should be of a conclusive nature and tendency.

(iv) they should exclude every possible hypothesis except the one to be proved, and

(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."

In Varun Choudhary Vs. State of

Rajasthan, 2011 Crl.L.J. 675, it has been held that where

chain of events is doubtful, no conviction can be based and it

is settled legal proposition that in a case of circumstantial

evidence there must be complete chain of events which would

lead to a conclusion that the accused was the only person,

who could have committed the offence and none-else.

In Jiten Besra v. State of West Bengal,

(2010) 2 S.C.C. (Cr.) 438 and in Kamla Devi vs. State of

Delhi, 2012 (2) J.C.C. 1457 (Delhi) the Hon''ble Supreme

Court has observed that once it is found that circumstance

could not point out towards guilt of accused, without any

other inference being probable, the accused must get the

benefit of doubt. In Baijnath & Ors. vs. State of Madhya

Pradesh, 2017 1 SCC 101, Hon''ble the Supreme Court has held

that in the cases of deficiencies of proof, benefit would be

available to the person charged and in Narendra Singh &

Another v. State of M.P ., (2004) 10 SCC 699, the Hon''ble

Apex Court has also held that in event of there being two possible

views, one supporting the accused should be upheld and Hon''ble

the Supreme Court has recognized presumption of innocence as a

human right.

In case under hand "motive" behind the murder

is also not candid nor it is established since Hakim Singh had

already sold his agriculture field to his relative after a legitimate

reason to settle the bank tractor loan dues, possession of the field

was handed over to him, deceased was adopted by his uncle

Laxman Singh from where 1/3 share was more to be inherited, he

was a bold person, who even went with a fire-arm to grab the land

from the possession of legitimate purchaser and fired in the

scuffle, his own son and wife for what reason, killed him is also

uncertain and unestablished, so prosecution has failed to establish

"motive", as well, as to why a bold person like Hakim Singh would

not be served meals and would be eliminated for no explicit

reason having perceptible nexus with the notion of "motive""

Having regard to the above, we are of the

view that prosecution has miserably failed to establish its

case, evidence of the prosecution is improbable and

unreliable, F.I.R is delayed without any cogent explanation,

attitude of natural mother is also unrealistic and

unbelievable. So, we feel that under the circumstances both

the accused appellants are entitled to get benefit of doubt.

Consequently, the appeal is allowed, the order

passed by learned trial Court convicting and sentencing the

appellants is set aside. The appellants-accused persons are on

bail, so they need not to surrender, their bail bonds are

discharged. Keeping in view, however, the provisions of

Section 437A Cr.P.C. the accused/appellants are directed to

forthwith furnish a personal bond in the sum of Rs.30,000/- and a

surety bond in the like amount respectively, before the learned

trial court, which shall be effective for a period of six months to

the effect that in the event of filing of Special Leave Petition

against the judgment or for grant of leave, the appellants, on

receipt of notice thereof, shall appear before Hon''ble the Supreme

Court.

Record of the lower Court be sent back promptly with a

copy of the judgment.